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Original Post: “Guilty Minds,” Tennessee Bar Journal, November 2017, www.tba.org/journal/guilty-minds


Is it possible to be convicted of a criminal offense without meaning to do something wrong? It is.

Despite the fact that basic tenets of criminal law include punishing only those who act with a guilty mind and deterring others from making the same bad choices, there are many federal statutes that do not have a mental element. In response, Sen. Orrin Hatch recently introduced the Mens Rea Reform Act of 2017. The purpose of the act is to “set a default intent standard for all criminal laws and regulations that lack such a standard … [and] ensure that courts and creative prosecutors do not take the absence of a criminal intent standard to mean that the government can obtain a conviction without any proof a guilty mind.”[1]

It might be surprising that there are criminal statutes that don’t require the government to prove that a defendant meant to do something wrong. But the statistics that the proponents of mens rea reform cite are staggering. Did you know that no one really knows how many federal crimes there are? I’m not an expert on this, but I’ve seen claims that there are close to 5,000 federal criminal offenses in the United States Code and many more regulations that can form the basis for criminal penalties.[2] The criminal penalties in the Migratory Bird Act are often cited as an example of a criminal offense without a mens rea requirement.[3] One study found that approximately 25 percent of the nonviolent criminal provisions passed by Congress in two different years lacked any mens rea requirement.[4]

The politics surrounding the arguments about “overcriminalization” and “mens rea reform” are fascinating. Just a few years ago, criminal justice reform was often seen as a “liberal” cause.
That is no longer clear. For example, in addition to Sen. Hatch, the sponsors of the Mens Rea Reform Act are Mike Lee, R-Utah, Ted Cruz, R-Texas, David Perdue, R-Georgia, and Rand Paul, R-Kentucky.

The coalition supporting mens rea reform includes the National Association of Criminal Defense Lawyers, the Koch brothers, the Heritage Foundation and the U.S. Chamber of Commerce. These diverse groups object to what they see as an increase in government authority and especially discretion authorized by vague criminal statutes. Opponents of the reform say that it will just make it harder for the government to go after white collar offenders and to enforce health and safety standards.[5]

We’ll follow these reform efforts, but is there a mens rea problem in Tennessee? Let’s take a look at the statutes. At first blush, it appears that our legislature has recognized that the purpose of criminal law is to punish those who mean to do something wrong. The objectives of the criminal code include to “[g]ive fair warning of what conduct is prohibited, and guide in the exercise of official discretion in law enforcement, by defining the act and the culpable mental state that together constitute an offense.”[6]

At least with regard to the offenses listed in Title 39, the legislature has mandated that “[a] culpable mental state is required … unless the definition of an offense plainly dispenses with a mental element.”[7] If the definition does not “plainly dispense” with the mental element but does not specifically list one, intent, knowledge or recklessness will suffice.[8]

Even sex offenses with an element of the victim’s age are not strict liability (as is often thought).[9] The state has to show the defendant at least acted recklessly. Likewise, the Tennessee Supreme Court has held that the criminal statute for displaying material harmful to minors, which does not have a mental state listed, requires at least recklessness because it does not specifically dispense with a requirement.[10]

It is true that some offenses can be committed by what seems like a low standard of “criminal negligence.” But “criminal negligence” requires considerably more than the tort concept. In Tennessee, negligent offenses require proof that the person acted with criminal negligence with respect to the circumstances surrounding that person’s conduct or the result of that conduct when the person ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. It requires a “gross deviation” from the standard of care as viewed from the accused’s standpoint.[11] In other words, although the state doesn’t have to show actual knowledge by the specific defendant, they still have to show that a person in the defendant’s position would have known about the risk.

The felony murder rule has always allowed a defendant to be convicted of first degree murder just like a premeditated murderer — where the killing occurred during a specified felony. No intent to kill is required. At least though, the defendant has to have the mens rea for the underlying crime. Very few people really understand this concept, however. Many defendants have argued their way into first degree murder convictions by claiming they just were in it for a robbery and didn’t know someone would get killed. But felony murder shouldn’t ever ensnare someone who didn’t know he or she was doing something wrong.

Things get tricky, though, when we start to look at various ways to impose criminal liability. In Tennessee, there are several different ways to punish individuals for crimes they did not personally physically commit. See Tenn. Code Ann. § 39-11-401 (parties to offenses); Tenn. Code Ann. § 39-11-402 (criminal responsibility for conduct of another); Tenn. Code Ann. § 39-11-403 (criminal responsibility for facilitation of felony); Tenn. Code Ann. § 39-11-411 (accessory after the fact). The criminal responsibility for acts of another statute and the facilitation statute provide liability for those who are not necessarily shown to intend the offense:

A person is criminally responsible for an offense committed by the conduct of another, if:

(2) Acting with intent to promote or assist the commission of the offense, or to benefit in the proceeds or results of the offense, the person solicits, directs, aids, or attempts to aid another person to commit the offense; or

(3) Having a duty imposed by law or voluntarily undertaken to prevent commission of the offense and acting with intent to benefit in the proceeds or results of the offense, or to promote or assist its commission, the person fails to make a reasonable effort to prevent commission of the offense.[12]

For comparison:
(a) A person is criminally responsible for the facilitation of a felony, if, knowing that another intends to commit a specific felony, but without the intent required for criminal responsibility under § 39-11-402(2), the person knowingly furnishes substantial assistance in the commission of the felony.[13]

Liability for the acts of another becomes far removed from individualized mens rea when the criminal responsibility statute is coupled with the “natural and probable consequences” jury instruction:

A defendant who is criminally responsible for an offense may be found guilty not only of that offense, but also for any other offense or offenses committed by another, if you find beyond a reasonable doubt that the other offense or offenses committed were natural and probable consequences of the original offense for which the defendant is found criminally responsible, and that the elements of the other offense or offenses that accompanied the original offense have been proven beyond a reasonable doubt.[14]

While I can’t imagine any juror understanding the differences between these theories of criminal liability, none of these Tennessee theories seeks to do away with a mens rea requirement in the way that critics have noted with regard to certain federal criminal provisions — those who would be affected by the Mens Rea Reform Act of 2017. Even the vast majority of the criminal offenses deemed to be offenses against public health, safety and welfare in Title 39, Chapter 17 of Tenn. Code Ann. contains specific mens rea requirements. Most of the offenses that don’t have mental elements in Tennessee appear to be traffic offenses.[15]

The federal and state approaches seem to be quite different. In Tennessee, while there may be vagueness issues and real questions about whether anyone can understand the requirements, the legislature generally has directed criminal enforcement at those who do have a guilty mind.


  1. U.S. Senate, Press Release, https://www.hatch.senate.gov/public/index.cfm/2017/10/senators-hatch-lee-cruzperdue-and-paul-introduce-bill-to-strength-criminal-intent-protections.
  2. Michael Cottone, “Rethinking Presumed Knowledge of the Law in the Regulatory Age,” 82 Tenn. L. Rev.137, 141; Glenn Harlan Reynolds, “Ham Sandwich Nation: Due Process when Everything Is a Crime,” 113 Columbia Law Review Sidebar 102 (2013); John S. Baker Jr., “Revisiting the Explosive Growth of Federal Crimes,” Legal Memorandum (Heritage Found., Washington, D.C.), June 16, 2008, at 1, available at http://www.heritage.org/research/reports/2008/06/revisiting-the-explosive-growth-of-federal-crimes.
  3. See Cottone, 82 Tenn. L. Rev. at 137-39.
  4. Brian W. Walsh and Tiffany M. Joslyn, “Without Intent: How Congress Is Eroding the Criminal Intent Requirement in Federal Law,” published by The Heritage Foundation and The National Association of Criminal Defense Lawyers, 2010, p. 13, http://www.heritage.org/crime-and-justice/report/without-intent-how-congress-eroding-the-criminal-intent-requirement
  5. See https://www.washingtonpost.com/news/powerpost/wp/2016/01/20/the-issue-that-could-keep-congress-from-passing-criminal-justice-reform/?utm_term=.e1241089c3cb.
  6. Tenn. Code Ann. § 39-11-101(2)(emphasis added).
  7. Tenn. Code Ann. § 39-11-301(b).
  8. Tenn. Code Ann. § 39-11-301(c).
  9. The terms of the statutes, therefore, expressly provide the requisite culpable mental state for the element of “Where the statutory scheme neither prescribes nor ‘plainly dispenses’ with the culpable mental state as to whether the victim is less than thirteen years of age, the terms of § 39-11-301(c) would also apply to this crime.” State v. Parker, 887 S.W.2d 825, 827 (Tenn. Crim. App. 1994) .
  10. Davis-Kidd Booksellers v. McWherter, 866 S.W.2d 520, 528 (Tenn. 1993).
  11. Tenn. Code Ann. § 39-11-106(a)(4).
  12. Tenn. Code Ann. § 39-11-402 (criminal responsibility for conduct of another).
  13. Tenn. Code Ann. § 39-11-403 (criminal responsibility for facilitation of felony) (emphasis added).
  14. T.P.I. Criminal 3.01.
  15. There may also be some B & C misdemeanor provisions for violation of health and safety regulations that do not specifically list a mens rea element. See Tenn. Code Ann. 68-131-105(a); Tenn. Code Ann. 68-221-413; Tenn. Code Ann. § 68-221-107; Tenn. Code Ann. § 69-1-107. The issue of whether there is a mens rea requirement for criminal prosecution does not appear to have been tested because these statutes are almost never used.